Recalling the Injustice Done to Sen. Ted Stevens | Commentary

Sen. Ted Stevens of Alaska was among the more powerful men in Washington exactly six years ago, as he wound down his seventh term and began a run for likely re-election. He was the longest-serving Senate Republican in history and his reputation among those who knew him well was impeccable.

According to former Secretary of State Colin Powell, who had worked closely with the senator since his days as President Ronald Reagan’s national security adviser, the senator was “a trusted individual ... someone whose word you could rely on. I never heard in all of those years a single dissenting voice with respect to his integrity, with respect to his forthrightness, and with respect to the fact that when you shook hands with Ted Stevens, or made a deal with Ted Stevens, it was going to be a deal that benefited the nation in the long run, one that he would stick with.” According to Powell, the senator’s reputation for integrity and truthfulness was “sterling,” and he was “a guy you take on a long patrol,” harkening back to his days as an Army Infantry Officer.

So when Department of Justice prosecutors chose to have the senator indicted less than 100 days before the 2008 elections, those who knew him were stunned. The senator pleaded not guilty (emphatically) and demanded a speedy trial, wanting to clear his name before November.

“This case is about concealment,” the Department of Justice’s lead lawyer stated in her opening statement, claiming that the senator had concealed that he had not paid full value for renovations to his modest Alaska cabin. In fact, Ted Stevens and his wife had paid more than $160,000 for renovations that independent appraisers valued at less than $125,000 at the time.

But relying on false records and fueled by testimony from a richly rewarded “cooperating” witness that the senator was merely “covering his ass” when he wrote a note stating that his desire to comply with all Senate rules, government prosecutors convinced jurors to find the him guilty just eight days before the general election, which he lost by less than 2 percent of the vote. The cooperating witness, wealthy Alaska businessman Bill Allen, was testifying for his own freedom (he was guilty of unrelated crimes), that of his children (who received immunity from prosecution after the government apparently threatened them) and the ability to sell his company for hundreds of millions of dollars.

After trial we learned that government prosecutors concealed compelling evidence from the defense. The cooperating witness did not come up with the “covering his ass” testimony until right before trial and his previous inconsistent statements were hidden from the defense. Likewise, the government concealed evidence that its star witness had suborned perjury from an underage prostitute with whom the star witness had an illegal sexual relationship. And the government concealed evidence that another witness — whom the government flew back to Alaska away from the Washington, D.C., trial after their mock cross-examination of him went poorly — had told the senator that the bills he received and promptly paid included all of the work that was done. Government prosecutors mocked Stevens when he explained that on the stand — all the while knowing that they had a witness who would have supported him, but whom they had removed from the trial.

The case was indeed about concealment, but it was government prosecutors who did the concealing. An independent investigation ordered by presiding Judge Emmet G. Sullivan found that the prosecution was “permeated by the systemic concealment of significant exculpatory evidence, which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

Though the case was dismissed before any sentence was ever imposed (and before a conviction was entered), the prosecution of Stevens was a miscarriage of justice.

Six prosecutors were investigated. Two were suspended from their work (though those suspensions were later overturned). The lead prosecutor was found to have exercised poor judgment, and left the government. Another committed suicide before the investigation was complete. None was prosecuted.

On the day in 2009 when the case against him was dismissed, Stevens addressed the court and expressed hope that “others may be spared similar miscarriages of justice.” He thanked the courageous judge who did not accept prosecutors’ representations that they had disclosed all evidence of innocence from the defense. He thanked new prosecutors who were appointed after the original prosecutors were held in contempt for not providing documents to the defense in violation of a court order. And he thanked our team of 12 lawyers who fought for him.

Stevens died in a plane crash in 2010, before two investigations were completed which found corruption of the prosecutorial function that exceeded what was known when the case was dismissed. He wanted legislation passed to spare others the injustice he endured — especially those who do not have 12 lawyers representing them. The Department of Justice has implemented new “guidelines” for federal prosecutors, but we are a nation of laws — not guidelines. The government disclaims these guidelines in courts, asserting (correctly) that they do not have the force of law. Until we have new legislation of the type that the senator wanted passed — legislation that ensures that evidence of innocence is made available to the defense — what happened to Ted Stevens can happen to any of us.

Rob Cary is a partner with Williams & Connolly LLP in Washington, D.C, and the author of “Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens.”